FOIA News: Harvard prof weighs in on SCOTUS Exemption 5 case

The very test under the Endangered Species Act is supposed to be ‘What is the best available science?'”

In a Q&A, Animal Law & Policy Clinic director describes what is at stake in SCOTUS Freedom of Information Act case brought by the Sierra Club

By Sarah Pickering, Harvard Law Today, Aug. 12, 2020

Should the public get a window into the factors federal agencies considered—or ignored—when devising important environmental, health and safety regulations, or would exposing those internal discussions to public scrutiny chill deliberations? That is the question underlying an amicus brief that the Harvard Law School’s Animal Law & Policy Clinic recently filed in the United States Supreme Court in a Freedom of Information Act (FOIA) case brought by the Sierra Club and involving the public’s right of access to scientific analyses concerning the adverse impacts of federal actions on endangered and threatened species.

Read more here.

FOIA News: New members appointed to FOIA Advisory Committee

Archivist Appoints New Members to the 2020-2022 FOIA Advisory Committee

Office of Gov’t Info. Serv., Aug. 12, 2020

We are pleased to announce that Archivist of the United States David S. Ferriero has appointed 20 Freedom of Information Act (FOIA) experts — 10 government FOIA professionals and 10 requester community representatives — to serve on the fourth term of the FOIA Advisory Committee. 

Read more here.

Court opinions issued Aug. 11, 2020

Nat’l Sec. Counselors v. CIA (D.C. Cir.) -- ruling that: (1) district court properly decided that CIA was not required to disclose list of FOIA requesters by fee category, because agency’s FOIA database did contain such information; (2) affirming district court’s decision that request to CIA seeking all records about IBM supercomputer named “Watson” imposed unreasonably burdensome search; and (3) DOJ’s Office of Legal Counsel was not required to release additional portions of two agency legal opinions, rejecting argument that attorney-client privilege had been waived.

Boyd v. Trump (D.D.C.) -- finding that incarcerated pro se plaintiff improperly named various government individuals as defendants and failed to show that he submitted FOIA requests to any Executive Branch agency.

Langston v. DHS (D. Ariz.) -- concluding that DHS properly relied on Exemption 3, in conjunction with National Security Act, in refusing to confirm or deny existence of records about plaintiff.

Abakporo v. EOUSA (D.D.C.) — upon government’s unopposed renewed summary judgment, determining that EOUSA properly searched for and disclosed all records pertaining to specific grand jury records of interest to plaintiff.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: D.C. Cir. will not require CIA to create records about FOIA requesters

CIA Needn’t Answer FOIA Requests About Who Sent FOIA Requests

By Porter Wells, Bloomberg Law, Aug. 11, 2020

• National security nonprofit lodged 45 records requests

• Agency needn’t create documents, other exemptions apply

The CIA doesn’t have to hand over information about which organizations have filed public records requests with the agency, after the D.C. Circuit Tuesday rejected an appeal by nonprofit organization National Security Counselors.

The group’s Freedom of Information Act request to the CIA asked for lists of all the agency’s FOIA requesters from 2008 to 2010 who identified themselves as “news media,” “educational or scientific,” “commercial,” or “all other.”

Read more here (accessible with subscription).

Copy of opinion here.

FOIA News: Interior IG report addresses FOIA "awareness review"

Watchdog report raises new questions for top Interior lawyer

By Rebecca Beitsch, The Hill, Aug. 10, 2020

A new report from the Interior Department’s watchdog reignites questions over the involvement of the agency's top lawyer in withholding public documents.

The report could give ammunition to Democrats who have accused Interior Solicitor Daniel Jorjani of perjuring himself before lawmakers.

The report from Interior’s Office of Inspector General (OIG) centers around the “awareness review” process at Interior that allowed political appointees to review Freedom of Information Act (FOIA) requests — something critics say gave Trump appointees undue influence over what records were released.

Read more here.

Court opinions issued Aug. 10, 2020

Ossen LLC v. U.S. Cent. Command (2nd Cir.) -- reversing and vacating district court’s decision that DOD had previously disclosed--and thus had improperly withheld pursuant to Exemption --certain classified images of terrorist attacks in Iraq.

Carlborg v. Dep’t of the Navy (D.D.C.) -- finding that agency performed adequate search for records pertaining to plaintiff’s involuntary separation from the military and properly withheld records pursuant to Exemption 5 and 6.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: DOD may withhold bombing images, 2nd Cir. rules

Images of Terrorist Bombs Stay Out of Reach in Suit Against Iran

Bloomberg Law, Aug. 10, 2020

• Previous disclosure of similar images irrelevant

• Specific requests exempt from FOIA disclosure

The Department of Defense properly withheld images of the damage caused by terrorist attacks on armored vehicles from the law firm suing Iran on behalf of military personnel injured in the attacks, the Second Circuit said Monday.

Osen LLC filed a Freedom of Information Act request for the images, saying they could be disclosed because the army previously released similar images from other attacks. Citing FOIA Exemption 1, which applies to information about national security that’s classified as secret, the army refused the request.

Full article here (accessible with subscription).

Copy of opinion here.

Court opinion issued Aug. 7, 2020

Lukas v. FCC (D.C. Cir.) (per curiam) -- holding that: (1) plaintiff failed to allege that FCC had “policy or practice” of failing to respond to FOIA appeals; (2) plaintiff forfeited his challenge to district court’s dismissal of his claim seeking declaration that Universal Service Administrative Company was not an agency for FOIA purposes, because he failed to address issue in his opposition brief; and (3) summarily affirming district court’s decision that agency properly withheld records pursuant to Exemption 4, but sidestepping issue of whether disputed records were “agency records.”

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 6, 2020

Ctr. for Public Integrity v. DOD (D.D.C.) -- deferring ruling on government’s exemption claims and ordering government to submit for in camera review certain records pertaining to the “Ukraine Security Assistance Initiative” that were withheld under Exemption 5.

Abdulkader v. Trump (D.D.C) -- dismissing case because plaintiff sued wrong defendants and failed to show that any federal agency received proper FOIA request.

Whitey v. FBI (W.D. Wash.) -- ruling that FBI properly relied on Exemption 7(D) in refusing to confirm or deny existence of records indicating whether deceased individual was agency informant, and denying plaintiff’s request for discovery or in camera review.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Aug. 5, 2020

Besson v. U.S. Dep’t of Commerce (D.D.C.) -- on renewed summary judgment, ruling that: (1) agency failed to demonstrate that names of contractor’s employees qualified as “commercial” information under Exemption 4; (2) agency properly withheld agreement with contractor pursuant to Exemption 4, except for portion of Statement of Work that might appear in public domain; (3) agency failed to establish that contractor’s names were protected under Exemption 6.

Frank LLP v. CFPB (D.D.C.) -- finding that agency properly relied on Exemptions 7(A), 7(C), and 7(E) to withhold agency transcripts of third-party testimony associated with certain enforcement actions.

Summaries of all published opinions issued since April 2015 are available here.